GJ v AS
[2015] ACTSC 66
•18 March 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | GJ v AS |
Citation: | [2015] ACTSC 66 |
Date of last submissions: | 22 October 2014 |
DecisionDate: | 18 March 2015 |
Before: | Penfold J |
Decision: | The appellant is to pay the respondent’s costs on a party-party basis. |
Category: | Costs |
Catchwords: | PROCEDURE – Costs – costs of appeal and late, unsuccessful disqualification application – defective notice of contention – appellant unsuccessful – respondent unsuccessful in matter mentioned in notice of contention – respondent’s failure to identify appeal as incompetent – respondent sought indemnity costs on grounds of time-wasting, making of inappropriate allegations, and imprudent refusal of compromise offer – unrepresented appellant a qualified but non-practising lawyer – appellant to pay respondent’s costs on party-party basis. |
Legislation Cited: | Domestic Violence and Protection Orders Act 2008 (ACT), ss 7(1), 7(1)(b), 7(2), 97, 117 Court Procedures Rules 2006 (ACT), rr 4, 4(1), 5001, 5051, 5173, Pts 2.17, 5.3, Dictionary Domestic Violence and Protection Orders Regulation 2009 (ACT), reg 93 |
Cases Cited: | British American Tobacco Australia Services Limited v Laurie & Anor (2011) 242 CLR 283 Cachia v Hanes& Anor (1994) 179 CLR 403 London Scottish Benefit Society v Chorley (1884) 13 QBD 872 |
Texts Cited: | GE Dal Pont, Law of Costs (2nd Ed) Lexis-Nexis Butterworths, 2009 |
Parties: | GJ (Appellant) AS (Respondent) |
Representation: | Counsel: In person (Appellant) SM (Respondent) |
| Solicitors: Self-represented (Appellant) Paul Clough Solicitor (Respondent) | |
File Number: | SCA 22 of 2012 |
Introduction
On 11 August 2014 I handed down judgment in an appeal by GJ against a refusal by a Magistrate to make a personal protection order against AS (GJ v AS (2014) 288 FLR 152 (the appeal decision)).
That judgment recorded my refusal to disqualify myself as sought by GJ, and my conclusion that the appeal was incompetent.
In that judgment I also reserved costs, indicated an inclination to order that each party pay its own costs of that appeal, and gave the parties 14 days (expiring on 25 August 2014) to file and serve any written submissions they wished to make about costs.
An extension of some six days, until 1 September 2014, was granted to both parties on 18 August 2014 at the request of AS’s counsel. Despite having been advised of this, GJ filed her submissions on 21 August. When AS’s submissions were filed on 1 September, GJ took exception to the fact that they amounted to a reply to her submissions, and sought a further three weeks to file and serve submissions in reply. Despite having obviously received a copy of AS’s submissions, GJ complained, in the same communication to the court, that she had not yet been served with a filed copy of AS’s submissions.
There was a delay in dealing with that request because of my absence from the court throughout September, but on 22 October 2014 GJ provided submissions in reply relating to costs.
Submissions
General comments
Both parties filed voluminous submissions. GJ’s original submissions occupied 31 paragraphs and 5 pages of single-spaced material. AS provided 106 paragraphs over 16 pages using a larger font and wider spacing. GJ replied by addressing, over 10 pages of adequately spaced material, each of AS’s 106 paragraphs.
Fortunately, the parties summarised their submissions, and it is on those summaries that I shall focus.
Before dealing with certain specifics of the various submissions, I note that many of GJ’s submissions were, in effect, attempts to re-argue matters in issue on the appeal before me. I have had no regard to those submissions, except to the very limited extent to which any of them appear to have any genuine relevance to the question of where the costs of the appeal should fall, noting that of course I am making this decision about the costs of the appeal against the background of the decisions I have reached in relation to the substance of the appeal. GJ clearly believes that most of those decisions are wrong; however, the outcome of the appeal, and the reasons for that outcome, are the only basis on which I can appropriately determine the costs issue.
Summaries provided by parties
GJ summarised her initial submissions as follows:
29.In summary, it is submitted that this court does not have the power to award costs. Throughout these proceedings the respondent, represented by a solicitor and a barrister has failed to make an application for the proceedings to be dismissed as not competent even after letters were sent by the appellant to Mr. Clough (in January and April this year) suggesting that the costs Order was not appealable. It is open to conclude this is because he did not accept or know that the appeal was not competent or did know but wanted the proceedings to drag out to cause detriment to the appellant (including a disparaging judgment) stop her from going back to the Magistrate's court to make a fresh application and or believed he was entitled to costs of the appeal and wanted costs to escalate.
30.[SM] is a legal practitioner, he is a barrister, he has a paramount duty to the court to not let proceedings that he knows (or ought to know) to not be competent to continue. He has a paramount duty to the court to advise the court of any errors of law or the correct state of the law. He has failed to do this. Mr. Clough failed to reply to the appellant's letters regarding the issue of costs.
31.It is submitted that in the circumstances the parties should bear their own costs.
10. AS summarised his arguments as follows:
105. In summary:
a)the Court has a power to award costs.
b)the ordinary rule in litigation of most kinds is that costs follow the event, and the successful party is entitled to their costs;
c)the court is not limited by the DVPO to award costs;
d)it is open to the court, and the court should find that the Appellant has indulged in an abuse of process, if not in the appeal as a whole, then at least in the application for bias;
e)the Court in awarding indemnity costs must have regard to the conduct of the Appellant such as:
i. the Appellant's conduct of the proceedings,
ii. the Appellant's general vexatiousness;
iii. her general conduct;
iv. her status as a non-practicing legal practitioner;
v. the pernicious nature of the interlocutory applications;
vi. the incompetent nature of the Appeal.
11. GJ replied with the following summary:
105.ln summary:
(a) The court does not have the power to award costs just as Magistrate Dingwall did not have the power to award costs other than where proceedings were stayed which they were not.
(b) This is not an 'ordinary' civil case, it is a proceeding under the Domestic Violence and Protection Orders Act 2008 and that is the law that should be applied and under that Act parties bear their own costs.
(c) The court is limited by the sections of the Act in relation to costs just as it is bound by Section 7(1)(b).
(d) Denied. It is open to conclude that the respondent in failing to make an application to strike out the appeal on the basis it was not competent has indulged in abuse of process for the purpose of obtaining a benefit (costs) and further harassing the appellant, preventing her from returning to the Magistrate's court to make a fresh application.
(e) The court should have regard to the fact that the respondent was represented throughout these proceedings by a lawyer and a barrister who ought to have known the appeal was not competent and who had a duty to convey this to the court (if they truly believe it to be the case) and to make an application for the appeal to be struck out. They should have known the appeal was incompetent (in relation to costs) from the time the appeal was served and to use the application for disqualification as an excuse for not making such an application is not only not sustainable it is vexatious.
106.Denied. The parties should bear their own costs.
The issues
12. The issues emerging from the parties’ submissions that I propose to consider are summarised below.
13. GJ says that the parties should bear their own costs. This is an outcome which would of course be far more beneficial to her than to AS, since she has incurred very little, if anything, in the way of compensable costs (see [44] below). She points in support of her submission to:
(a)her view that I do not have power to make a costs order in this matter;
(b)AS’s failure to identify the appeal as incompetent;
(c)my conclusions that AS’s notice of contention was inappropriate and that the costs order that AS sought to have amended to fix the costs payable by GJ was also not appealable;
(d)AS’s failure to certify the appeal book within the required deadlines;
(e)the “principles for making protection orders” set out in s 7(1)(b) of the Domestic Violence and Protection Orders Act 2008 (ACT) (the DVPO Act).
14. AS submits that there is no basis for making a costs order in favour of GJ, because of her status as a self-represented or unrepresented litigant.
15. AS further says that I should order GJ, as the unsuccessful party in the appeal, to pay his costs, and that I should order them to be paid on an indemnity basis. In support of those submissions he points to:
(a)Colgate-Palmolive Company and Anor v Cussons Pty Limited (1993) 46 FCR 225 (Colgate-Palmolive), where Sheppard J at 24 set out circumstances in which it would be appropriate to order indemnity costs;
(b)GJ’s refusal to accept the compromise offer made in the Magistrates Court despite the Magistrate’s advice that what was offered was probably better than any order he could make under the DVPO Act (at [38] of the appeal decision); and
(c)GJ’s attempts to set up appeal points during the course of proceedings in both the Magistrates Court and the Supreme Court (see [64], [223] and [239] of the appeal decision); and
(d)GJ’s attempts to delay the completion of the appeal, especially by making her bias claim against me several months after the judgment was reserved.
Consideration of the issues
The power to award costs
16. GJ asserts that this Court does not have the power to award costs in a proceeding of this kind. AS disputes this.
17. GJ’s original application to the Magistrates Court, and her appeal against Magistrate Dingwall’s decision, were brought under the DVPO Act. Rule 4 of the Court Procedures Rules 2006 (ACT) (the CPRs) is relevantly as follows:
4 Application of rules
(1)Unless a territory law otherwise provides, these rules apply to all proceedings in the Supreme Court and Magistrates Court, other than proceedings under the Domestic Violence and Protection Orders Act 2001 and the Domestic Violence and Protection Orders Act 2008.
Note 1A territory law includes these rules (see Legislation Act, s 98).
Note 2Div 6.10A.3 (Trans-Tasman proceedings—service of subpoenas in New Zealand) applies to proceedings under the Domestic Violence and Protection Orders Act 2008 and also to proceedings in the Coroner’s Court (see r 6864 (Application—div 6.10A.3)).
Note 3Pt 5.3 (Appeals to Supreme Court) applies to appeals under the Domestic Violence and Protection Orders Act 2001 and the Domestic Violence and Protection Orders Act 2008 (see r 5051 (Application—pt 5.3)).
18. That is, the CPRs do not apply to proceedings under the DVPO Act unless specifically applied (r 4(1)).
19. Pt 5.3 of the CPRs deals with appeals to the Supreme Court. Rule 5051 and item 6 of Table 5051 expressly apply Pt 5.3 of the CPRs to appeals from the Magistrates Court brought under s 97 of the DVPO Act.
20. Appeals to the Supreme Court under Pt 5.3 are appellate proceedings (Dictionary, definition of “appellate proceeding”).
21. Rule 5001 applies Pt 2.17 of the CPRs (relating to costs) to appellate proceedings.
22. I am satisfied that the Supreme Court has the same powers to award costs as it has in relation to any other civil appeal to the Supreme Court in its original jurisdiction.
23. GJ challenges this conclusion in the following submissions:
17.Regulation [sic] 4 of the Court Procedure Rules 2006 was apparently amended in 2010 [sic] to make part 5.3 of the CPR apply to proceedings under the Act.
18.The records of the Rules Committee fail to give reasons for the amendment to Regulation 4 that had been previously amended only the year before. The minutes of the committee are attached marked ‘A’.
24. In an unanswered letter to Mr Clough, a copy of which was attached to those submissions, GJ said:
Now, regulation [sic] 4 of the Court Procedure Rules 2006 was apparently amended in 2011 [sic] to make part 53 of the CPR apply to proceedings under the Act. I had to file another appeal in March 2013. The court and registry have made me (but not [AS] and his lawyers because of the way the court's and registry's construe S 7 (l) (b) of the Act) comply with Part 5.3 of the CPR as well as part 6.2 of the CPR.
The 'Rules Committee' is set up under Section 9 of the Court Procedures Act 2004. Judges and Magistrates sit on the rules committee. An advisory committee is set up under Section 11 of the Court Procedures Act 2004. An amendment to the Court Procedure Rules is a Notifiable instrument. The Rules Committee does not keep proper records. The records of the Rules Committee do not reflect the reasons for Regulation 4 was amended only after only a year in such a way as to cause detriment to me and to other victims of violence as compliance with the rules causes delays that disadvantage a victim.
The power of the Supreme Court to award costs was previously contained in the Supreme Court Act but is now only found in the CPR which is subordinate legislation. This can be contrasted with every other Australian state and territory.
25. I infer (with some hesitation) that GJ’s submissions were intended to challenge the validity of the 2011 amendment of r 4 and Table 5051 of the CPRs (being the amendment that applied Pt 5.3 of the CPRs to proceedings under the DVPO Act), on the grounds that inadequate reasons were given for this amendment.
26. The additional material provided in the letter to Mr Clough suggests that GJ’s challenge to the current form of r 4 is less straightforward, but does not provide any basis that I can see for departing from my preliminary conclusion that the Supreme Court has in this case the usual powers to make costs orders on a civil appeal from the Magistrates Court.
27. GJ also seeks to support her submission that the Supreme Court has no power to order costs in this case by distinguishing between s 117 of the DVPO Act and reg 93 of the Domestic Violence and Protection Orders Regulation 2009 (ACT) on the basis that one is “substantive law” (because it is an Act) and the other is “procedural law” (because it is in regulations). This argument reflects GJ’s misunderstanding of the topics and operation of the two provisions, a misunderstanding which I have already dealt with and rejected at [193] to [203] of the appeal decision. I do not propose to devote any more time to that misunderstanding.
28. I note that in 2011 Gray J, in an earlier matter involving the current parties (GJ v AS [2011] ACTSC 119 (the Gray J decision)), reached the equivalent conclusions to those I have reached (specifically, that the costs power in a case of this kind has been available since the CPRs were amended in 2011).
Incompetence of appeal and problems with notice of contention
29. GJ argues that if her appeal was, as I found, incompetent, then AS’s lawyers should have identified it as such. Curiously GJ, unlike AS’s lawyers, did not refer to r 5173 of the CPRs, which is as follows:
Appeals to Supreme Court—costs for failure to apply for appeal to be struck out as incompetent
(1) This rule applies if a respondent to the appeal does not make an application under rule 5172 (1) and the appeal is struck out by the Supreme Court as incompetent.
(2) The respondent must not receive any costs of the appeal, unless the Supreme Court otherwise orders.
NotePt 6.2 (Applications in proceedings) applies to an application for an order under this rule.
(3) The Supreme Court may order that the respondent pay the appellant any costs of the appeal wasted because of the respondent's failure to make an application under rule 5172 (1).
(4) The Supreme Court may make an order under this rule on application by a party to the appeal or on its own initiative.
30. AS’s lawyers argued that their failure to apply to have the appeal struck out should not in this case provide a basis for an order for costs against AS. This submission is based largely on the argument that the competence of the appeal could not be determined until I had determined GJ’s claims that the Magistrate was biased against her. I cannot see that GJ’s allegations of bias would have precluded an early claim, or a finding, that the appeal was incompetent. However, for a different reason I accept AS’s submission that my finding as to the incompetence of the appeal does not require me to make a costs order adverse to AS or prevent me making a costs order in his favour.
31. That reason is simply that the proceedings in the Magistrates Court, and the appeal proceedings before me, were both so prolonged, and so complicated, mainly by GJ’s approach to the proceedings but to a lesser extent by certain aspects of AS’s conduct, that the incompetence of the appeal did not become clearly apparent until a very late stage in the proceedings. This was not a simple case in which the appeal had been brought to the wrong court, or without necessary leave. Rather, as set out in my decision on the appeal, my conclusion that the appeal was incompetent required both a determination from among several options of the basis on which the Magistrate dismissed GJ’s application, by reference among other things to the transcript of the last few minutes of the proceedings in the Magistrates Court and a consideration of whether the order his Honour made in doing so was an “appealable decision” under the DVPO Act (at [128] to [162] of the appeal decision). It was not immediately apparent to me at the beginning of the appeal hearing that a determination of incompetence would be the conclusion of my review of the progress of the matter through the Magistrates Court, and it is unsurprising if that conclusion was also not immediately apparent to AS’s lawyers when they were notified of GJ’s appeal.
32. Furthermore, it is likely that any attempt by AS to resist GJ’s appeal on a procedural rather than substantive ground would have been seized on by GJ as an admission by AS that his substantive position was weak; as such, any attempt of that kind would not have been conducive to the efficient resolution of the appeal.
33. In my decision on the appeal, having concluded that the appeal was incompetent, I nevertheless considered and expressed views about GJ’s substantive arguments, on the basis that this was a case in which there were good reasons for eliminating, as far as possible, any scope for fragmenting the resolution of the issues and thereby expanding the range of separate challenges that could be brought to different aspects of the proceedings. For similar reasons, I consider that any attempt by AS to have GJ’s appeal struck out as incompetent would simply have produced a slightly different but no more efficient series of proceedings.
34. As to my conclusion that the Magistrate’s costs order was also not appealable, AS’s approach to that question does not seem to raise any different issues from those I have already discussed in relation to the competence of GJ’s appeal.
35. The inadequacies in AS’s notice of contention would not as such deprive him of a costs order, but in the circumstances they may have some relevance to AS’s application for costs on an indemnity basis.
Failure to certify the appeal book
36. In the course of her submissions about costs, GJ referred at least twice to AS’s alleged failure to certify the appeal book for the appeal. It may be that AS has not in fact formally certified the appeal book, although this may raise more questions about the registry’s dealings with the appeal (specifically about why it was docketed before the appeal book was certified), than about AS’s conduct. Be that as it may, I note that on 17 February 2014, following earlier complaints to this effect by GJ, I made an order to the effect that if no dispute about the contents of the appeal book was advised to my chambers by 24 February 2014, I would treat the appeal book as agreed. No dispute was notified, so I have operated since then on the basis that the appeal book could be treated as having been certified by AS with effect from 24 February 2014.
37. Given that GJ is not seeking an order that AS pay any of her costs, and that she has not identified any way in which AS’s failure might have increased his costs, I cannot see why GJ continues to complain about AS’s failure to certify the appeal book, or why it should be relevant to whether she should pay any of AS’s costs.
Principles for making protection orders
38. Finally, GJ has repeatedly sought to rely on s 7(1)(b) of the DVPO Act; that provision is relevantly as follows:
7Principles for making protection orders
(1)In deciding an application for a protection order, the paramount consideration is—
(a)...
(b)for a personal protection order (other than a workplace order)—the need to ensure that the aggrieved person is protected from personal violence; and
(c)....
(2)If a protection order is to be made on an application under this Act, it must be the protection order that is least restrictive of the personal rights and liberties of the respondent as possible that still achieves the objects of the Act and gives effect to subsection (1).
GJ is correct in noting that the “paramount consideration” in determining an application for a personal protection order is “the need to ensure that the aggrieved person is protected from personal violence”, although this is qualified by s 7(2). However, I cannot see that s 7(1), even ignoring s 7(2), is intended to require a court to make a personal protection order simply because a person has applied for such an order. The court is still in my view obliged to determine whether there are grounds for making the order sought, and whether protecting an applicant from personal violence does actually require, or would be advanced by, the making of such an order.
40. Even less can I see that s 7(1) has any significance in relation to the question of which party should bear the costs of an unsuccessful appeal from an unsuccessful application for a protection order.
GJ’s entitlement to any costs order?
41. As noted at [12] above, GJ does not seek a costs order in her favour, and AS made submissions to the effect that no such order could be made anyway.
42. In general, a self-represented or unrepresented litigant is not entitled to an ordinary order for costs, because such a litigant does not incur legal costs as such. Nor is such a litigant entitled to costs in compensation for his or her personal exertion in conducting the litigation (Cachia v Hanes & Anor (1994) 179 CLR 403 (Cachia) at 410).
43. An exception to the usual rule about unrepresented litigants that allows solicitor litigants to recover certain of their costs was recognised in London Scottish Benefit Society v Chorley (1884) 13 QBD 872 (although described as “anomalous” in Cachia at 411). However, counsel says, that exception has no basis where a solicitor does not have a current practising certificate entitling him or her to charge for the relevant legal services (see GE Dal Pont, Law of Costs (2nd Ed) Lexis-Nexis Butterworths, 2009 at 197, referring to Croker v Commissioner of Taxation (2002) 124 FCR 286, and Law of Costs at 180-184).
44. AS submits that GJ, although qualified and admitted to practice as a lawyer, has no practising certificate and does not practise as a lawyer, and on that basis is not able to seek the costs of litigation she has initiated. GJ in her submissions objects to that information being provided by submission, but has made no attempt to establish that she is currently a practising lawyer. Accordingly, I consider that I should determine this matter on the basis that GJ is in the same position as an unrepresented lay litigant.
Indemnity costs
45. In Colgate-Palmolive, Sheppard J reviewed and summarised the authorities about indemnity costs. After considering aspects of the history of the power to award indemnity costs, he said at 233:
In consequence of the settled practice which exists, the Court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the Court in departing from the usual course. ... The tests have been variously put. The Court of Appeal in Andrews v Barnes said the Court had a general and discretionary power to award costs as between solicitor and client "as and when the justice of the case might so require." Woodward J in Fountain Selected Meats appears to have adopted what was said by Brandon LJ (as he was) in Preston v Preston; namely, there should be some special or unusual feature in the case to justify the Court in departing from the ordinary practice. Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule. But as French J said in Tetijo, "The categories in which the discretion may be exercised are not closed". Davies J expressed similar views in Ragata. (citations omitted)
46. His Honour went on at 233-234 to note some of the circumstances seen as having justified the exercise of the discretion, including:
(a)the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud;
(b)evidence of particular misconduct that causes loss of time to the Court and to other parties;
(c)the fact that the proceedings were commenced or continued for some ulterior motive or in wilful disregard of known facts or clearly established law;
(d)the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions;
(e)an imprudent refusal of an offer to compromise; and
(f)a party being a contemnor.
47. His Honour concluded at 234:
Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of
costs other than on a party and party basis.6. It remains to say that the existence of particular facts and circumstances capable of warranting the making of an order for payment of costs, for instance, on the indemnity basis, does not mean that judges are necessarily obliged to exercise their discretion to make such an order. The costs are always in the discretion of the trial judge. Provided that discretion is exercised having regard to the applicable principles and the particular circumstances of the instant case its exercise will not be found to have miscarried unless it appears that the order which has been made involves a manifest error or injustice.
48. AS referred particularly to the matters mentioned in [46] (b), (d) and (e) above.
49. There is no doubt that GJ’s conduct of the appeal, including in particular her repeated attempts to re-argue the nature of the appeal and the making of bias allegations several months after the decision on the appeal was reserved, wasted court time and AS’s time; I hesitate, however, to identify those matters as misconduct. I am satisfied, however, that GJ did prolong the case by making groundless contentions in both those respects. Furthermore, her approach to appeal points during the course of proceedings, although not directly prolonging the proceedings concerned, do not evidence a commitment to the efficient resolution of the issues between the parties.
50. I also accept AS’s submission that GJ’s refusal of a settlement offer made in the Magistrates Court (at [31] (c) above) was highly imprudent. I note also that GJ’s approach to the settlement offer is notable in the context of costs submissions in which she attributes to AS and his lawyers a variety of improper motives for failing to apply to have the appeal struck out as incompetent; among other things she suggests that they preferred to allow the proceedings to continue, in order to cause her detriment in general or in the specific hope of obtaining a larger costs order against her.
Bias claims
51. There is no doubt that GJ has in this matter demonstrated an unfortunate tendency to make claims of bias against relevant judicial officers; the transcript of proceedings before Magistrate Dingwall contains a number of references to the possibility that the Magistrate was biased against her (at [31] and [60] to [65] of the appeal decision), and [215] to [274] of the appeal decision refer to the bias allegations made against me.
52. GJ responded to AS’s submissions about her claims of bias by asserting that her application to me to disqualify myself was entirely appropriate and prudent “given the conduct of the court toward the appellant and her Honour’s inconsistent approach towards the parties that is also evident in her judgment”. My view of GJ’s application is clear in the appeal decision; it is worth adding in this context only that it would have been easier to accept GJ’s application as borne out of a genuine concern arising from the conduct of the proceedings if it had been made during the hearing of the proceedings rather than several months after the hearing had concluded.
53. As at the hearing of the appeal (recorded at [229] of the appeal decision), I note the remark by Mason J quoted by French CJ in British American Tobacco Australia Services Limited v Laurie & Anor (2011) 242 CLR 283 at [1]:
In 1986 Mason J said:
It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.
54. It is not to the point for GJ to note, as she did during the course of the hearing of the disqualification proceedings before me and in response to a suggestion by AS’s counsel that she made disqualification applications as a matter of course (quoted at [266] of the appeal decision), that she had not made an application to Gray J to disqualify himself in the matter mentioned at [28] above in which the Gray J decision was made.
55. As noted at [22] of the appeal decision, Gray J upheld GJ’s claim that the Magistrates Court registrar had not had a power that the registrar purported to exercise (that is, the power to determine that AS had a reasonable excuse for failing to lodge the endorsement copy of the notice advising him of the making of the interim personal protection order) (the Gray J decision).
56. I have not seen the transcript of the hearing before Gray J, but it seems likely that his Honour had in the course of argument and before making his orders given some indication that he doubted the registrar’s power to deal with the failure to lodge the endorsement copy, thus giving GJ reason to expect the decision that was ultimately made in her favour. I note also that at page 5 of Attachment B to her first costs submissions (Attachment B is a copy of a letter dated 6 January 2014 that GJ says she sent to AS’s solicitor), GJ says that “To my expectation my appeal [to Gray J] was upheld in relation to the issue of the endorsement”.
57. If anything, GJ’s emphasis on her failure to make a disqualification claim in a matter in which she expected to succeed and which probably seemed to be progressing in her favour tends to support the possibility that GJ makes bias applications when it seems to her that things are not going well.
58. On the other hand, the only bias claim directly relevant to the current question is the one made against me. Except for the timing of that claim, I do not see that there would be any basis for making an indemnity costs order in respect of the bias claim unless I considered that it was appropriate to make such a costs order in respect of the rest of the appeal.
Conclusions
59. I start from the position that the successful party is entitled to a costs order.
60. On the appeal each party has been unsuccessful in having its complaint against Magistrate Dingwall’s orders upheld. GJ has also been unsuccessful in her application to me to disqualify myself from the matter. This might suggest an order that GJ pay a substantial proportion (but not all) of AS’s costs on a party-party basis.
61. I am satisfied that GJ has in many ways inappropriately complicated or prolonged the proceedings before me (including in ways that have in other cases been seen as justifying an award of indemnity costs; see [46] above). This might suggest an order that GJ pay some part of AS’s costs on an indemnity basis.
62. Having weighed up these various matters, and wishing to avoid any unnecessary complexity in the assessment of costs, I conclude that the appropriate order is simply that GJ is to pay AS’s costs of the appeal (including the disqualification application) on a party-party basis.
| I certify that the preceding sixty-two [62] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: |
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